the Constitution

National and state minority commission

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National and state minority commission

Constitution of India doesn’t define the word ‘Minority’ but has used the word minorities considering two attributes religion or language of a person. For minorities Constitution of India has envisaged a number of rights and safeguards. To provide enough equality and to dwindled the discrimination, makers have spelt out various things in Fundamental Rights (PartIII); Directive Principles of State policy (Part IV) and also the Fundamental Duties (Part IV-A). However, with rising right and rising wedge between right and left and also the ephemeral political aspirations of various political parties have diluted the discrimination safeguards.

The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992. Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in Gazette of India as minority communities by the Union Government all over India . Original notification of 1993 was for Five religious communities Sikhs, Buddhists,Parsis,Christians and Muslims.

Functions and Powers

  • Evaluate the progress of the development of Minorities under the Union and States.
  • Monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures.
  • Make recommendations for the effective implementation of safeguards for the protection of the interests of Minorities by the Central Government or the State Governments.
  • Look into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities.
  • Cause studies to be undertaken into problems arising out of any discrimination against Minorities and recommend measures for their removal.
  • Conduct studies, research and analysis on the issues relating to socio-economic and educational development of Minorities.
  • Suggest appropriate measures in respect of any Minority to be undertaken by the Central Government or the State Governments.
  • Make periodical or special reports to the Central Government on any matter pertaining to Minorities and in particular the difficulties confronted by them.
  • Any other matter which may be referred to it by the Central Government.

The Commission has the following powers:

  • Summoning and enforcing the attendance of any person from any part of India and examining him on oath.
  • Requiring the discovery and production of any document.
  • Receiving evidence on affidavit.
  • Requisitioning any public record or copy thereof from any court or office.
  • Issuing commissions for the examination of witnesses and documents.

State minority commission

The recognition of any community as a religious minority means that the States should have a State level Commission to ensure that the rights and privileges allowed to the minorities under law are not denied to them. In a situation of difficulty a member of the minority community can invoke the law that safeguards his interests. In pursuance of this objective, each State in the Union including Union Territories are required to set up respective Minority Commission to cater to the needs and interests of the minority communities in the concerned states. However, the Union Minister for Minorities, while replying to a question in the Parliament disclosed that twelve States, including four ruled by BJP and its allies, and six Union Territories (UTs) have not set up Minorities Commissions at their respective levels. Incidentally, Jammu and Kashmir also figures in the list of twelve States with no Minority Commission.

 

National women’s commission

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National women’s commission

It is said that the best way to know about society, a civilization and a culture, try to know as much possible about the women. In India, women have come a long way from the rare women scholars and sages of the Vedic age to the women in different sectors of society and civilization today, such as the armed forces, arts, information technology, politics and a number of similar sectors which have traditionally been male dominated, while simultaneously balancing the roles of wife, mother and daughter. While Indian women have fought against the patriarchal Indian society and triumphed at many levels, cases of rape, dowry deaths, female infanticide, sexual harassment at workplaces, female illiteracy, and similar problems are still rampant in Indian society. It was in this backdrop that the Committee on the Status of Women in India (CSWI) the establishment of the National Commission for Women to fulfill the surveillance functions and to facilitate redressal of grievances and to accelerate the socio-economic development of women.

The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 ( Act No. 20 of 1990 of Govt.of India)  to review the Constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women.

Importance of The Commission

Women as a class neither belong to a minority group nor are they regarded as a backward class. India has traditionally been a patriarchal society and therefore women have always suffered from social handicaps and disabilities. It thus became necessary to take certain ameliorative steps in order to improve the condition of women in the traditionally male dominated society.The Constitution does not contain any provision specifically made to favor women as such. Though Art. 15 (3), Art. 21 and Art. 14 are in favor of women; they are more general in nature and provide for making any special provisions for women, while they are not in themselves such provisions. The Supreme Court through interpretive processes has tried to extend some safeguards to women. Through judgments in cases such as Bodhisattwa Gautam v. Subra Chakraborty . and the Chairman Rly Board v. Chandrima Das case, where rape was declared a heinous crime, as well as the landmark judgment in Visakha v. State of Rajasthan. the courts have tried to improve the social conditions of Indian women. But these have hardly sufficed to improve the position of women in India. Thus, in light of these conditions, the Committee on the Status of Woman (India) as well as a number of NGOs, social workers and experts, who were consulted by the Government in 1990, recommended the establishment of a apex body for woman.

The Mandate of the Commission

Broadly speaking the Commission’s mandate can be divided under four heads:

  • safeguard of rights of women granted by the constitution and laws,
  • study problems faced by women in the current day and make recommendations to eradicate these problems,
  • evaluating the status of Indian women from time to time and
  • funding and fighting cases related to women’s rights violations.

Functions of commission

Complaint And Counseling Functions: The “core” unit of the Commission is considered to be the Complaint and Counseling Cell and it processes the complaints received oral, written or suo moto under Section 10 of the NCW Act. The complaints received relate to domestic violence, harassment, dowry, torture, desertion, bigamy, rape and refusal to register FIR, cruelty by husband, derivation, gender discrimination and sexual harassment at work place. During 1999, the Commission received 4329 complaints related to the above types of crimes against women.

Legal functions: A large part of the Commission’s mandate is related to legal research for safeguards of women, legal interventions, recommendations on bills and similar matters relating to the legal system of India. The legal cell of the Commission was set up in order to deal with these functions. The activities of this cell can be divided into three categories: (a) legal amendments proposed (b) new laws and bills proposed and (c) court interventions.

Research Functions: The research cell of the Commission is that organ of the Commission that looks into the emerging problems of Indian women due to discrimination and gender bias. This cell is also responsible for educating women about their rights through a variety of seminars, workshops, conferences and public hearings. This cell has also organized various special studies and set up expert committees to look into and suggest remedies for problems, which have evolved recently. Currently the cell is dealing with issues related to Gender and Law Enforcement, Impact of Displacement of Women, Sexual Harassment at Workplace, Issues concerning Prostitution and Political Empowerment of Women.

 

Controversies: Critical analysis

Section 497 of the Indian Penal Code

In December 2006 and January 2007, the NCW found itself at the center of a minor controversy over its insistence that Section 497 of the Indian Penal Code not be changed to make adulterous wives equally prosecutable by their husbands.  But the grounds on which Chairperson of commission resists the logic of making this a criminal offence — particularly for women, as often recommended — are not as encouraging. She is averse to holding the adulterous woman equally culpable as the adulterous man because women, she believes, are never offenders. They are always the victims. The NCW has demanded that women should not be punished for adultery, as a woman is “the victim and not an offender” in such cases. They have also advocated the amendment of Section 198 of the CrPC to allow women to file complaints against unfaithful husbands and prosecute them for their promiscuous behaviour. This was in response to “loopholes” in the Indian Penal Code that allowed men to file adultery charges against other men who have engaged in illicit relations but did not allow women to file charges against their husbands.

 

Mangalore pub attack controversy

The NCW came under sharp criticism for their response to the attack by forty male members of the Hindu right-wing Sri Ram Sena on eight women in a bar in Mangalore in late January 2009. Video from the attack shows the women were punched, pulled by their hair, and thrown out of the pub.  NCW member Smt Nirmala Venkatesh was sent to assess the situation, and said in an interview that the pub did not have adequate security and that the women should have protected themselves. Venkatesh said, “If the girls feel they were not doing anything wrong why are they afraid to come forward and give a statement?” On 6 February, the NCW said they decided not to accept Venkatesh’s report but would not be sending a new team to Mangalore. On 27 February, the Prime Minister’s Office approved the removal of Nirmala Venkatesh on disciplinary grounds.

 

Reasonable restrictions on fundamental rights and right to property

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Reasonable restrictions on fundamental rights and right to property

Fundamental Rights are the basic rights of the people and the charter of rights contained in Part III of Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, religious and cultural freedom and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

Though the Constitution of India guarantees all these Fundamental rights for the citizen, yet there are some limitation and exceptions of these rights also. A citizen can not enjoy Fundamental Rights absolutely or at will.

Reasonable’ means that which is in accordance with reason, and which is associated with logic and not arbitrariness. It implies intelligent care and deliberation that which reason dictates. The expression “reasonable restriction” signifies that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

Within some Constitutional limitation citizen can enjoy their Rights. The Constitution of India imposes some reasonable restrictions upon enjoyment of these Rights so, that public order, morality and health remain intact . The Constitution always aims at restoration of collective interest along with individual interest .For example, right to religion is subject to restrictions imposed by the state in the interest of public order, morality and health so, that the freedom of religion may not be abused to committee crimes or anti-social activities . Similarly Rights guaranteed by article-19 does not mean absolute liberty . Absolute individual rights can not be guaranteed by any modern state . There fore our Constitution also empowered the state to impose reasonable restrictions as may be necessary in the larger interest of the community . our Constitution always attempts “ to strike a balance between individual liberty and social control .” and to establish a welfare state where collective interest got prominence over individual interest .Freedom of speech and expression (Art.19-1-A) is also subject to reasonable restrictions imposed by the state relating to defamation, contempt of court, decency or morality, security of the state, friendly relations with foreign states , incitement to an offence, public order, maintenance of the sovereignty and integrity of India . Freedom of assembly (Art.19-1-B) is also subject to reasonable restrictions imposed by the state that the assembly must be peaceful and without arms in the interest of public order. Freedom of press which is included in the wider freedom of expression is also subject to reasonable limitations and the state can impose restriction upon freedom of press in the larger interest of the state or for the prevention of contempt of court, defamation or incitement to an offence.

Right to property

Property, as a legal and social institution, has different forms in different cultures and legal systems. However, only a definition of Constitutional property is common in all democratic countries. Since state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property. However, the right to property is a natural and inherent right of an individual.

After independence, no Fundamental right has caused so much trouble and has given so much of litigation between the government and citizens as the property right. The reason is that the central and state governments have enacted massive hysteron of laws to regulate property rights. First, the government undertook to reconstruct the agrarian economy, interalia, by trying to confer right to property on tillers, abolition of zamindaris, giving security of tenure to tenants, fixing a ceiling limit on personal holding of agricultural land and redistributing the surplus land among the landless. Secondly, in the area of urban property, measures have been taken to provide housing to the people, clearance of slums and planning, control rents, acquire property and impose a ceiling on urban land ownership etc., Thirdly, government has undertaken to regulate private enterprises and nationalization of some commercial undertakings. These various legislative measures have been undertaken to effectuate accepted goal of establishing a socialistic pattern of society. Hence Articles 31 and 19(1)(f)  were repealed. Historical evolution and demise of repealed Articles 31 and 19(1)(f) are still relevant for the understanding of constitutional developments of property right. Since the commencement of the Constitution fundamental right conferred by Article 31 and Article 19(1)(f) has been modified by six times by the constitutional amendments. The first amendment added two explanatory Articles 31-A & 31-B to the Constitution; the fourth amendment amended clause (2) of Article 31, added clause (2A) to the same Article, inserted new provisions in Article 31-A and enlarged the ninth schedule; the seventeenth amendment further elaborated the definition of ‘estate’ in clause (2) of Article 31-A; and the twenty fifth amendment amended Article 31(2), added clause (2-B) and added a new Article 31-C. In the forty second amendment Article 31-C was substituted by the words “ the principles specified in clause (b) or clause (c) of the Article 39” for the words “all or any of the principles laid down in part IV of the Constitution”.

finally forty fourth amendment repealed the entire Article 31 and Article 19(1)(f) & inserted Article 300A.

Ninth Schedule – A Protective Umbrella

Article 31-B, does not by itself give any fundamental right. The Acts and regulations placed under ninth schedule shall not be deemed to be void or ever to have become void on the ground of its inconsistency with any fundamental right. In Kameshwar Singh 80 case, the Supreme Court said that no Act brought under the ninth schedule could be invalidated on the ground of violation of any fundamental rights.

With the introduction of the above amendment, it became very easy for the Government to acquire property and to carryout different agrarian reforms. Firstly the acquisition laws under the fear of being challenged were inserted in the ninth schedule by the constitutional amendments and thereby the concerned laws were made immune from challenge against any of the fundamental rights guaranteed under part III of the Constitution.

So for now right to property in india is a statutory right under the article 300A of Indian constitution.

 

Planning commission and national development council

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Planning commission and national development council

Planning commission

The Planning Commission was an institution in the Government of India, which formulated India’s Five-Year Plans, among other functions.

Background

Rudimentary economic planning, deriving from the sovereign authority of the state, was first initiated in India in 1938 by Congress President and Indian National Army supreme leader Netaji Subhash Chandra Bose, who had been persuaded by Meghnad Saha to set up a National Planning Committee. M. Visvesvaraya had been elected head of the Planning Committee. Meghnad Saha approached the great engineer and requested him to step down. He argued that planning needed a reciprocity between science and politics. M. Visvesvaraya generously agreed and Jawaharlal Nehru was made head of the National Planning Committee.The so-called “British Raj” also formally established a planning board that functioned from 1944 to 1946. Industrialists and economists independently formulated at least three development plans in 2012. Some scholars have argued that the introduction of planning as an instrument was intended to transcend the ideological divisions between Mahatma Gandhi and Nehru. Other scholars have argued that the Planning Commission, as a central agency in the context of plural democracy in India, needs to carry out more functions than rudimentary economic planning.

After India achieved Independence, a formal model of planning was adopted, and accordingly the Planning Commission, reporting directly to the Prime Minister of India, was established on 15 March 1950, with Prime Minister Jawaharlal Nehru as the Chairman. Authority for creation of the Planning Commission was not derived from the Constitution of India or statute; it is an arm of the Central Government of India.

Composition of commission

The composition of the Commission underwent considerable changes since its initiation. With the Prime Minister as the ex officio Chairman, the committee had a nominated Deputy Chairman, with the rank of a full Cabinet Minister. Cabinet Ministers with certain important portfolios acted as ex officio members of the Commission, while the full-time members were experts in various fields like economics, industry, science and general administration.  Ex officio members of the Commission included the Finance Minister, Agriculture Minister, Home Minister, Health Minister, Chemicals and Fertilisers Minister, Information Technology Minister, Law Minister, Human Resource Development Minister and Minister of State for Planning.

The Commission worked through its various divisions, of which there were two kinds:

  • General Planning Divisions
  • Programme Administration Divisions

Functions

  • To make an assessment of the material, capital and human resources of the country, including technical personal, and investigate the possibilities of augmenting those are related resources which are found to be deficient in relation to the nation’s requirement.
  • To formulate a plan for the most effective and balanced utilisation of country’s resources.
  • To define the stages, on the basis of priority, in which the plan should be carried out and propose the allocation of resources for the due completion of each stage.
  • To indicate the factors that tend to retard economic development.
  • To determine the conditions which need to be established for the successful execution of the plan within the incumbent socio-political situation of the country.
  • To determine the nature of the machinery required for securing the successful implementation of each stage of the plan in all its aspects.
  • To appraise from time to time the progress achieved in the execution of each stage of the plan and also recommend the adjustments of policy and measures which are deemed important vis-a-vis a successful implementation of the plan.
  • To make necessary recommendations from time to time regarding those things which are deemed necessary for facilitating the execution of these functions. Such recommendations can be related to the prevailing economic conditions, current policies, measures or development programmes. They can even be given out in response to some specific problems referred to the commission by the central or the state governments.

In his first Independence Day speech in 2014, Prime Minister Narendra Modi announced his intention to dissolve the Planning Commission. It has since been replaced by a new institution named NITI Aayog.

National development council

The National Development Council (NDC) or the Rashtriya Vikas Parishad is the apex body for decision making and deliberations on development matters in India, presided over by the Prime Minister. It was set up on 6 August 1952 to strengthen and mobilize the effort and resources of the nation in support of the Plan, to promote common economic policies in all vital spheres, and to ensure the balanced and rapid development of all parts of the country. The Council comprises the Prime Minister, the Union Cabinet Ministers, Chief Ministers of all States or their substitutes, representatives of the Union Territories and the members of the NITI Aayog.  It is an extra-constitutional and non-statutory body.

Objectives

  • To secure cooperation of the states in the execution of the plan.
  • To strengthen and mobilize the effort and resources of the nation in support of the Plan.
  • To promote common economic policies in all vital spheres.
  • To ensure the balanced and rapid development of all parts of the country.

Functions

  • To prescribe guidelines for the formulation of the National Plan, including the assessment of resources for the Plan.
  • To consider the National Plan as formulated by the NITI Aayog.
  • To make an assessment of the resources that are required for implementing the Plan and to suggest measures for augmenting them.
  • To consider important questions of social and economic policy affecting national development; and to review the working of the Plan from time to time.
  • To recommend such measures as are necessary for achieving the aims and targets set out in the National Plan.
  • To recommend measures for achievement of the aims and targets set out in the national Plan.

National and state SC/ST commission

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National and state SC/ST commission

National SC commission

National Commission for Scheduled Castes (NCSC) is an Indian constitutional body established with a view to provide safeguards against the exploitation of Scheduled Castes to promote and protect their social, educational, economic and cultural interests, special provisions were made in the Constitution.

 

Functions

  • To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards.
  • To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes.
  • To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State.
  • To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards.
  • To make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes.
  • To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

 

 

National ST commission

The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. By this amendment, the erstwhile National Commission for Scheduled Castes and Scheduled Tribes was replaced by two separate Commissions namely-

  • the National Commission for Scheduled Castes (NCSC),
  • (ii) the National Commission for Scheduled Tribes (NCST) w.e.f. 19 February, 2004.

Powers of the Commission

For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to:

  • Summon and enforce attendance of any person and examine on oath.
  • Discovery & production of any documents.
  • Receive evidence on affidavits.
  • Requisition any public record or copy thereof from any court or office.
  • Issue Commissions for examination of witnesses and documents.
  • And Any matter which President, by rule, may determine.

Functions of the Commission

  • To investigate & Monitor matters relating to Safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such Safeguards.
  • To inquire into specific complaints relating to Rights & Safeguards of STs.
  • To participate and advise in the Planning Process relating to Socio-economic development of STs, and to evaluate the progress of their development under the Union and any State.
  • To submit report to the President annually and at such other times as the Commission may  deem  fit, upon/ working of Safeguards, Measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs.
  • To discharge such other functions in relation to STs as the President may, subject to the provisions of any law made by Parliament, by rule specify.
  • The Commission would also discharge the following other functions in relation to the protection, welfare and development & advancement of the Scheduled Tribes, namely:
  • Measures that need to be taken over conferring ownership rights in respect of minor forest produce to the Scheduled Tribes living in forest areas.
  • Measures to be taken to safeguard rights to the Tribal Communities over mineral resources, water resources etc. as per law.
  • Measures to be taken for the development of tribals and to work for move viable livelihood strategies.
  • Measures to be taken to improve the efficacy of relief and rehabilitation measures for tribal groups displaced by development projects.
  • Measures to be taken to prevent alienation of tribal people from land and to effectively rehabilitate such people in whose case alienation has already taken place.
  • Measures to be taken to elicit maximum cooperation and involvement of Tribal Communities for protecting forests and undertaking social afforestation.

State level SC/ST commission

Different states has founded SC/ST commissions to address the issues related to both the casts.

Role of State level commission:

  • The study the existing state of various provisions in the Constitutions and by the State Government for the Scheduled Castes and Tribes and suggest measures to fulfill the same.
  • To investigate various grievances raised by members from Scheduled Castes and Tribes.
  • To participate in the process of creation of schemes related to the economic upliftment of Scheduled Castes and Tribes and provide advice to the State Government regarding the same.
  • To take a review of matters registered under the Scheduled Castes / Tribes Atrocities Act 1989 and Protection of Civil Rights Act 1955.
  • To take review of the financial assistance to be given to the affected persons under the above mentioned acts. To accept and investigate grievances of SC/ST employees related to service.
  • To take a review of policies related to Scheduled Castes / Tribes. To provide advice to the State Government for rolling out beneficial schemes for Scheduled Castes and Tribes.